The Biden administration has reportedly urged Congress to renew a controversial bill which allows the government to collect digital communication from foreign targets without a warrant – even if those targets are communicating with Americans.
The bill known as Section 702 authorizes a program known as Project Stellarwind. The program was secretly begun by then-president George W. Bush shortly after the 9/11 terrorist attacks and was officially recognized in 2008.
Section 702 allows the government to demand the digital communication of foreign targets from large companies such as Google or Microsoft, and as mentioned under Section 702 this can be done without a warrant.
The communication disclosed to the government can also incidentally include communication from American nationals. If the foreign target has made contact with an American, then that American’s conversation is also disclosed to the government.
The sticky part of the law comes from the fact that much of this data is stored in the United States and is otherwise under the purview of American-based companies.
US Attorney General Merrick Garland and Director of the National Security Agency Avril Haines published a letter to Congress, requesting that the law remain:
Title VII of FISA, and in particular Section 702, has been a critical authority for the Intelligence Community (IC) and Department of Justice (DOJ) since its passage in 2008. The authority allows the U.S. Government to acquire foreign intelligence information from individual terrorists, weapons proliferators, hackers, and other foreign intelligence targets located overseas who operate using U.S. electronic communications service providers. It also requires the IC and DOJ to comply with robust privacy and civil liberties safeguards, which are overseen by all three branches of government. As the examples below demonstrate, the information acquired using Section 702 plays a key role in keeping the United States, its citizens, and its allies safe and secure.
Given this, the reauthorization of Title VII is a top legislative priority for this Administration. Both the IC and DOJ thus stand ready to provide you and your offices with information about how Section 702 is used to produce unique and timely intelligence, and the steps we have taken to strengthen compliance with FISA’s privacy and civil liberties safeguards. As in past reauthorization cycles, the IC and DOJ are committed to engaging with Congress on potential improvements to the authority that fully preserve its efficacy…
While the law’s reauthorization has seemingly been a matter of routine in the past, privacy advocates still urge the government to reconsider due to its ability to retrieve communications from Americans without a warrant or consent – which is generally viewed as a violation of the U.S. Constitution.
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